SANJU ALIAS SANJAY Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused aggrieved by the order of the IV Addl. Sessions Judge, Gulbarga convicting him for the offences punishable under S. 361 and 376 of IPC and sentencing him to undergo simple imprisonment for 5 years and fine of Rs. 500/ - in default to undergo three months simple imprisonment. For the offence under S. 376, IPC, the accused was also sentenced to undergo 7 years simple imprisonment and fine of Rs. 1,000/ -, in default to undergo three months simple imprisonment. The facts leading to this appeal are: The father of the victim girl lodged a complaint before the Chowk Police Station, Gulbarga stating that he is a resident of Ashraya Colony, Gulbarga and is doing masonry work and has four children -two sons and two daughters. The eldest daughter is the victim who is aged about 14 years. Ten days earlier to the date of alleged incident of kidnap, one Mallikarjun s/o. Hunchappa came to his house with a marriage proposal for his daughter with the accused Sanju Bhimarao, also a resident of the same colony. Since his daughter was only 14 years old, he did not accept the proposal. Thereafter, when he went out for his usual work and his wife was also not there as she had gone to the market to bring jowar, in their absence, on 23.7.2007 at 2.00 p.m. when his daughter went to attend nature's call, at that time, the accused kidnapped her. It is stated, he searched for his daughter everywhere and also informed his friends and on coming to know that the accused was also not to be seen, lodged a complaint to the police to take action against the accused Sanjay and also his friend Jaibheem who helped him. On the complaint, a case in Crime No. 116/2007 was registered for the offences punishable under S. 365 and 366 -A, IPC. The police took up investigation and filed charge sheet. Thus, according to the prosecution, accused kidnapped the victim, a minor girl, with an intention to marry her and took her to Mumbai and stayed there for quite some time. During the stay at Mumbai near Johnson and Johnson Company in the house of CW 9, accused forcibly committed rape despite protest by the victim. The evidence of the victim is also to a similar effect After framing of charges since the accused pleaded not guilty and claimed to be tried, the prosecution having examined in all about eighteen witnesses, got marked about sixteen documents and M Os 1 to 9 during the trial. Thereafter, the accused was examined under S. 313, Cr.PC. His defense was total denial. After hearing, the Sessions Judge convicted the accused to undergo simple imprisonment for five years and also to pay fine of Rs. 500 and default sentence of three months for the offence under S. 363, IPC. Further, the accused was also sentenced to undergo seven years, simple imprisonment and to pay fine of Rs. 1,000/ - and default sentence of three months SI for the offence under S. 376, IPC. Challenging the order of conviction and sentence passed by the I Addl. District Judge, Gulbarga, this appeal is filed by the accused.

(2.) ACCORDING to the learned counsel for the appellant/accused, the trial court erred in convicting the accused based on the evidence of interested witnesses and they are also not eye witnesses to the incident i.e., PWs 1, 2, 6 and 9 - father, mother, victim and uncle of the victim. There are several contradictions and inconsistencies in their evidence. Though according to the prosecution one PW 12 Mallikarjun is said to be the witness for kidnapping but, naturally he has not supported the version of the prosecution. It is also argued that version of the prosecution itself is that the appellant and the victim are having an affair and were talking to each other and this was seen by PW 4 and also PW 5. That itself shows that the victim is a willing party to accompany the accused and also she went along with the accused voluntarily. Further, as per the medical evidence, the victim had attained the age of discretion as such, when she voluntarily accompanied the accused and if there is any sexual intercourse even without admitting as stated by the victim, the conduct of the victim herself shows that she is a consenting party. This aspect has not been taken note of by the trial court and the appellant accused is innocent. Without properly appreciating the evidence on record, accused was convicted and further, several love letters written by the victim and sent through her friend also depicted victim was intending to marry the accused and there is also a suggestion to PWs 4 and 5. This clearly demonstrate that there was an affair between the victim and the accused prior to the alleged incident and they were in love with each other as such, both of them ran away from Gulbarga. The version of the victim that the accused threatened her at knife point and took her away and forcibly had intercourse with her is an improvement. There is no corroboration as to the version of the victim having regard to the nature and conduct of the victim. She has deposed under fear of the parents. Without appreciating the same, solely believing the evidence of the prosecutrix, erroneously, the accused has been convicted by the trial court. Even it is also argued that the medical evidence regarding presence of spermatozoa is proved to the negative except it is stated that the victim is used to an act of intercourse and in the absence of medical evidence, conviction of the accused for the offence under S. 376, IPC solely on the statement of the victim under fear is erroneous. It is even argued that the age of the victim was taken solely on the school certificate without taking into consideration assessment of age medically to form an opinion that victim was a minor which is erroneous. Accordingly, on various grounds, counsel has sought for setting aside the order of conviction and sentence passed.

(3.) IN the light of arguments advanced, the following points would arise for consideration.